The New York Times has reported that, in May 2017, shortly after the firing of FBI Director James Comey, Deputy Attorney General Rod Rosenstein floated the idea of removing President Trump from office under the 25th Amendment. The story is explosive. Specifically, the Times reported that on May 16 of last year Rosenstein told Andrew McCabe, then the deputy FBI director, that the deputy attorney general “might be able to persuade Attorney General Jeff Sessions and John F. Kelly … to mount an effort to invoke the 25th Amendment.”
The story is actually the second this month to suggest that officials at the highest levels of the executive branch are thinking about designating the president as unfit for office. On Sept. 5, the Times published an op-ed by an unnamed senior Trump administration official who wrote that, amid the chaos in the White House, “there were early whispers within the cabinet of invoking the 25th Amendment.”
They would have to be whispers. The effort to invoke the 25th Amendment’s removal provision against a conscious president would place any cabinet officer involved at such enormous risk of firing. By the nature of the undertaking, it would have to be done in secret. It would necessarily, in fact, look a lot like a conspiracy.
This does not mean that it would necessarily be malicious or inappropriate to invoke the 25th Amendment under circumstances in which the president was genuinely incapacitated. Nor does it mean that an effort along the lines reportedly described by Rosenstein would constitute any sort of conspiracy in the criminal sense. To the contrary, it is the duty of cabinet officials to remain vigilant of a president’s ability to exercise his or her duties. But any effort to remove a still-functional president under the 25th Amendment would have to involve a lot of the sneaking around corners and hushed conversations that you probably imagine when you think of a conspiracy—lest the president’s loyalists discover the plot and alert the chief executive or leak it to the press. As Jack Goldsmith wrote in response to the Times story, “The president and his allies will ... use this story as confirmation that there is a broader ‘Deep State’ conspiracy to bring down the president.”
The conspiratorial quality of the enterprise is a function of the structure of the 25th Amendment itself. The amendment was designed for use on a president who wasn’t suffering from a physical inability, like a coma, only in the most extraordinary circumstances. Applying it in a situation of a president who may be incapacitated by emotional disregulation of precisely the sort he displayed throughout the campaign that got him elected may be an uncomfortable fit.
Any mention of removing the president under the 25th Amendment refers to Section 4 of the provision, which creates a mechanism for removing a president who is “unable to discharge the powers and duties” of the office. The drafters of the 25th Amendment, working in the years after the Kennedy assassination, initially sought to create a tool for circumstances under which a president was physically incapacitated. They feared what would have happened if President Kennedy had not died from Lee Harvey Oswald’s bullet, but instead remained in a persistent vegetative state—or if any president was obviously and dangerously unable to perform the duties of the office. The vice president would have no basis to assume the powers of the presidency. There would be no basis for impeachment—which sanctions removal only for “treason, bribery, and high Crimes and misdemeanors.” The country would be left without a functioning president.
Section 4 created a way to remove such a president without resorting to impeachment. As I’ve summarized the provision before:
The final version of the 25th Amendment provides that when the vice president and a majority of the Cabinet determine that the president is unable to perform his duties, the vice president becomes the acting president. Upon a written declaration by the president that the disability no longer exists, he or she resumes the office unless, within four days, the vice president and principal officers or other congressionally designated body tell Congress that they believe the president is wrong and that the disability persists. Then, Congress has 21 days to vote on the matter; with support from two-thirds majorities in the House and Senate, the vice president is to continue as acting president. If the vice president and the Cabinet do not contest the president's assertion or Congress does not vote to retain the vice president as acting president, then the president resumes office.
Resorting to Section 4 presupposes that the president does not accept that he is unable to perform his duties; otherwise, he would use Section 3, which sets up a procedure for a president voluntarily and temporarily to transfer power to the vice president. If the president is not unconscious, using Section 4 can become adversarial. So any cabinet member or official involved in the planning or execution of a Section 4 action should assume he or she would be be fired if found out. (If the president opts to fire Rosenstein after Friday’s news, it would certainly endorse that assumption.)
That creates a considerable collective-action problem. The risk that a cabinet officer would take on by spearheading a plan to invoke the 25th Amendment might deter anyone from ever floating the idea to others. That’s made even more complicated by the idea that cabinet officers—let alone the vice president—have at least some loyalty to the president and might be inclined to tell him of an effort to remove him. One reason that the 25th Amendment might be playing such a minimal role in the Trump era, despite obvious interest in it within the senior levels of the executive branch, is that this collective-action problem is actually prohibitive.
A responsible cabinet officer would also have to plan for what to do when fired—an eventuality such an officer would have to anticipate. Inevitably, that means informing his or her deputy and other close advisers of the effort to invoke the amendment. It might also include drafting a letter, documenting the factual basis for the decision to trigger the amendment, to be transmitted to Congress or the press.
And though any majority combination of cabinet officers can come together for Section 4, the conspiracy falls apart without the vice president. Under section 4, even if every cabinet member is confident in the president’s disability, the vice president must agree. The vice president is the essential player. The drafters contemplated that Congress might at some point want to appoint a commission to review the president’s ability, allowing for “a majority … of such other body as Congress may by law provide” to rule on the 25th Amendment question. Even then the vice president must concur to remove the president.
What in this administration we might call the “Pence Problem” arguably compounds the first-mover problem and deters organizing among other cabinet members. After all, if Pence won’t agree that Trump cannot fulfill his constitutional duties, even a successful initial conspiracy would founder when the other participants found out.
To be clear, this is a feature, not a bug, of the amendment. The vice president takes the reins of the country in the event Section 4 is invoked, so it seems wise constitutionally not to impress an unwilling vice president into service in an administrative coup he actually opposes. What’s more, the vice president’s political loyalty to the president as someone who campaigned with him, shares his vision for the country, and—unlike cabinet officers—shares in the democratic legitimacy of his election, confers legitimacy on the use of a constitutional procedure that might otherwise look quite undemocratic.
To top off the risk, the product of the 25th Amendment process won’t be worth much if supermajorities in Congress don’t get on board. Even if the cabinet and vice president are successful and undetected in initiating a Section 4 action, the president’s assertion that they’re wrong puts the ball in Congress’s court. And as Steve Vladeck tweeted after the anonymous op-ed came out:
Just a friendly reminder that, after a lot of huffing and puffing, Section 4 of the Twenty-Fifth Amendment effectively requires a two-thirds vote of both the House and the Senate to remove a sitting President—even if the VP and Cabinet think he should be removed.
— Steve Vladeck (@steve_vladeck) September 6, 2018
Sustaining a removal action requires meeting a greater threshold than impeachment and conviction. And even if Congress does get behind the cabinet’s finding, the president can challenge their finding again. Congress must then vote again. And the cycle can repeat again and again, until Congress blinks. If Congress doesn’t back the cabinet, one should only assume that the president would fire any executive branch official he thought was involved. These outcomes may have been what was administration officials minds when they decided against the amendment, thinking, as the Times op-ed admits, that “no one wanted to precipitate a constitutional crisis.”
What value, then, can the 25th Amendment offer in cases other than a comatose president? There seem to be few good scenarios. It could be used concurrently with an impeachment proceeding to keep an off-the-rails president out of office during a trial, for example. Beyond that, however, it is unlikely to be an effective instrument against a president who contests its invocation.
Perhaps that’s the ultimate reason the whispers have remained only whispers.